Do Human Rights Treaties Matter?: Judicial Responses to the Detention of Asylum Seekers in the United States and the United Kingdom
51 Pages Posted: 28 Feb 2018
Date Written: February 19, 2018
Most scholars assume that if U.S. courts were to apply international human rights law to the detention of asylum-seekers, the result would be greater protections than are currently provided by U.S. law. This article probes that assumption by comparing U.S. jurisprudence on the detention of asylum-seekers with similar case law in the U.K., which has incorporated into its domestic law treaties purporting to protect the liberty interests of asylum-seekers.
My analysis reveals that human rights law has had far less of a positive impact than many scholars assume. Over the past decade and a half, courts in the U.K. have generally approved of the detention of asylum-seekers on much the same grounds as their counterparts in the U.S., despite numerous challenges based on human rights law. Those grounds include administrative convenience due to the need to process thousands of claims in short order, as well as concerns over the possibility that asylum-seekers will abscond if released while their claims are pending.
The article speculates that one of the reasons for the relative powerlessness of human rights treaties to curb the detention of asylum-seekers in the U.K. is the hostility toward refugees in that country. That hostility, expressed through political rhetoric, tabloid headlines, and public opinion polls, is far more intense than in the U.S., where opposition to non-citizens is focused on undocumented immigrants generally rather than asylum-seekers in particular. In this way, the article contributes to the growing literature on the circumstances under which human rights treaties impact the behavior of state actors, including domestic court judges.
This article is particularly timely, as it includes an analysis of two very recent decisions by courts in each country: the decision last week by the United States District Court for the District of Columbia striking down the U.S. policy of detaining nearly all Central American women and children who had claimed asylum after crossing the border from Mexico during the summer of 2014; and the December 2014 decision by the U.K. Court of Appeal striking down the U.K. policy of detaining asylum-seekers pending the appeal of an initial rejection of their claim.
This article builds on my recent scholarship on the impact of human rights treaties on asylum jurisprudence in the Canada, the U.K., and the U.S. which has been published in the Osgoode Hall Law Journal (2014) and forthcoming in both the Vanderbilt Journal on Transnational Law and the Columbia Human Rights Law Review.
Keywords: International Law, Immigration Law
JEL Classification: K33, K37
Suggested Citation: Suggested Citation